Rosie Wall
A DISTRIBUTIVE JUSTICE APPROACH TO AN INHERENTLY UNJUST PROBLEM: CLIMATE CHANGE
INDUCED DISPLACEMENT
LAWS 523: Special Topic: International Climate Change Law
Submitted for the LLB (Honours) Degree
Te Kauhanganui Tātai Ture | Faculty of Law Te Herenga Waka | Victoria University of Wellington
2021
Greenhouse gas emissions are causing severe and irreversible changes to the climate. Despite contributing minor amounts to global emissions, poor and developing countries, such as island states in the Pacific, will face the most severe climate change consequences. The inability to cope with and adapt to climatic changes will lead to the displacement of millions of people from their homes, communities and countries. Poor and developing populations will make up the majority of displaced persons. This is climate change induced displacement and its inherent injustice. The present status of international law offers no assistance or protection in the face of climate displacement. A new international legal framework that responds to climate displacement is fundamental. A displacement framework should be grounded in distributive justice theory. Distributive justice allows for the burdens of climate induced displacement to be distributed among the international community in accordance with states’ capability to bear such burdens. A new approach under a new framework will allow the displaced financial assistance for relocation and protection in their host countries. Capability-based distributions avoid fault and liability, politically sensitive notions that have obstructed climate justice in the past. Instead, this approach encourages collective responsibility to address a globally induced problem. This is distributive climate justice.
Contents (References – table of contents)
I Introduction ... 5
II The Injustice of Climate Induced Displacement ... 7
A The Climate Vulnerable ... 7
1 Environmental vulnerability ... 8
2 Socioeconomic vulnerability ... 9
B Climate Induced Displacement ... 10
1 Causes ... 10
2 Types ... 11
3 Consequences ... 13
4 Displacement in the Pacific ... 14
C The Injustice ... 15
III The Law ... 18
A Refugee Law ... 18
1 Migration as adaptation ... 21
2 Loss and damage ... 23
C International Human Rights Law ... 25
D Conclusion ... 26
IV An International Legal Framework for Climate Displacement ... 27
A Justification for a new Framework ... 27
1 Scale and nature of the problem ... 27
2 Existing obligations ... 28
B Scope of a new Framework ... 28
1 A legally binding, freestanding framework ... 28
2 External displacement ... 29
3 Financing and hosting ... 30
C Finding the Political Will ... 30
1 Self-interest and mutual gains ... 31
2 Morality and justice ... 32
V A Justice-Based Approach ... 32
A Corrective Justice (and its Limitations) ... 33
1 Causality and harm ... 34
2 Litigation challenges ... 35
3 Disincentivising cooperation ... 36
4 Conclusion ... 37
B Distributive Justice ... 37
1 Distributive justice in international law ... 38
2 Distributive justice in climate displacement ... 38
3 Avoiding the problems of corrective justice ... 39
4 Conclusion ... 40
VI Distributing the Burdens of Displacement ... 40
A Distributing Financial Burdens ... 40
1 The need for cooperative sovereignty ... 41
2 The problem of potential liability ... 42
3 Distributing according to capability ... 43
B Distributing Hosting Burdens ... 44
1 Burden sharing ... 45
2 Distributing according to capability ... 46
3 Additional considerations ... 47
C Conclusion ... 50
VII Implications of a Distributive Justice Approach ... 50
A Climate Displacement under a new Framework ... 50
1 The Pacific region ... 50
2 Global displacement ... 51
B Climate Justice? ... 52
1 Financial assistance ... 53
2 Hosting responsibilities ... 54
3 Room for corrective justice? ... 55
C Conclusion ... 56
VIII Bibliography ... 58
A Cases ... 58
1 New Zealand ... 58
2 Germany ... 58
3 Netherlands ... 58
4 International ... 58
B Treaties and Other Instruments... 58
C Books and Chapters in Books ... 59
D Journal Articles ... 61
E Reports ... 64
F Unpublished Papers ... 65
G Internet materials ... 66
I Introduction
The Intergovernmental Panel on Climate Change (IPCC) has stated that the dramatic and irreversible changes to the climate result from human activity.1 Anthropogenic climate change is the greatest political, legal, environmental and ethical problem the world currently faces.2 Not all humans, however, have contributed to this problem equally. The notion of climate (in)justice refers to the significant inequities within the climate change sphere. Simply put, those who have contributed to climate change the least, namely the developing world, are suffering the consequences most severely.3 This fact is particularly prominent in the context of climate change induced displacement.4
Around the globe, millions of people have been, or soon will be, displaced from their homes due to climate change rendering areas uninhabitable.5 If the earth warms to the expected 1.5°C above pre-industrial levels, natural and human systems will be put under immense pressure due to climate-related risks.6 Particular regions and communities around the globe have increased susceptibility to such risks. The effects of global warming are already changing the environment in the Pacific region, with sea-level rise causing a host of problems and threatening the livelihoods of communities.7 This paper centres its focus on the Pacific region, where entire island states are vulnerable to inundation.8 Following the observable pattern, the communities vulnerable to climatic changes and subsequent displacement consistently have low records of greenhouse gas emissions.9 Herein lies the injustice.
International law, including the international climate change regime, offers no protection mechanism for those forced to relocate. This shortcoming supports the creation of a new
1 IPCC Global Warming of 1.5°C: Summary for Policymakers (IPCC, Special Report 15, 2018) at 4.
2 Stellina Jolly and Nafees Ahmad Climate Refugees in South Asia (Springer, Singapore, 2019) at 16.
3 Elkanah Babatunde “Distributive Justice in the Age of Climate Change” (2020) 33 CLJL 263 at 265.
4 ‘Climate induced displacement’ and ‘climate displacement’ are used throughout this paper as blanket terms referring to all people movement influenced by climate change.
5 Foresight Migration and Global Environmental Change: Future Challenges and Opportunities (Government Office for Science, Final Project Report, 2011) at 25.
6 IPCC, above n 1, at 5.
7 Silja Klepp and Johannes Herbeck “The Politics of Environmental Migration and Climate Justice in the Pacific Region” (2016) 7 JHRE 54 at 63; and Simon Albert and others “Heading for the Hills: Climate-Driven Community Relocations in the Solomon Islands and Alaska Provide Insight for a 1.5°C Future” (2018) 18 Regional Environmental Change 2261 at 2262–2263.
8 Working Group II IPCC Climate Change 2014: Impacts, Adaptation and Vulnerabilities: Part A: Global and Sectoral Aspects (IPCC, Fifth Assessment Report, 2014) at 73; and Albert and others, above n 7, at 2262.
9 Maxine Burkett “Climate Reparations” (2009) 10 Melb J Intl L 509 at 512.
international legal framework that places enforceable obligations on states to assist with the problem of climate induced displacement. Given the scale and complexity of the problem, the inability of current regimes to substantiate any helpful obligations and the necessity of global cooperation, a new legal framework is both justified and essential.
This inherently unjust dilemma warrants a justice-based approach. Distributive justice should provide the foundations for a new legal framework for climate induced displacement. Under such a framework, the burdens of climate induced displacement should be redistributed among states based on states’ capability to assist.
Justice-based approaches to the problems associated with climate change have often resembled corrective justice. Corrective justice requires establishing fault, giving rise to compensation.10 This approach will fail in the displacement context, as it has failed in the past, due to the developed world’s clear avoidance to admit fault.11 Instead, distributive justice aims to redistribute benefits and burdens equitably, without asserting fault.12 A new approach under a new framework will generate collective responsibility for climate displacement, a globally induced problem. This paper will demonstrate how such an approach will achieve distributive climate justice for the displaced.
Parts II of this paper will provide contextual background. The chapter will discuss climate vulnerability, climate displacement and climate injustice, focusing on the Pacific region.
Subsequent analysis of international law in part III will demonstrate the system’s failings to respond to this growing problem. Part IV will justify the creation of a new international legal framework. Two theories of justice, corrective and distributive, will be introduced in Part V, including an explanation of why the former is ill-suited to the problem of climate displacement.
Application of distributive justice will follow. Part VI will focus on equitably redistributing the financial and hosting burdens of displacement among capable states. The implications of a new legal framework that addresses climate induced displacement will be discussed in part VII, as well as concluding comments.
10 Christopher Mbazira Litigating Socio-Economic Rights in South Africa: A Choice between Corrective and Distributive Justice (Pretoria University Law Press, South Africa, 2009) at 8.
11 Sam Adelman “Climate Justice, Loss and Damage and Compensation for Small Island Developing States”
(2016) 7 JHRE 32 at 35.
12 Marco Grasso Justice in Funding Adaptation under the International Climate Change Regime (Springer, New York, 2010) at 35.
II The Injustice of Climate Induced Displacement
This introductory chapter will outline the injustice inherent in the problem of climate induced displacement. Despite continuing efforts to halt global warming, there are significant and devastating climatic changes occurring worldwide.13 The impacts of these changes are disproportionately spread, felt most strongly by those most vulnerable and those who have least contributed to global warming.14 Among this group are small low-lying islands in the Pacific region. The following chapter will explore climate vulnerability, climate displacement and climate justice in the Pacific region.
A The Climate Vulnerable
The Paris Agreement stipulates that reducing global warming to between 1.5°C and 2°C above pre-industrial levels is necessary to lessen the climatic impacts and risks associated with rising temperatures.15 Despite this goal, significant changes to natural and human systems have already resulted and will persist.16 Climatic variability will increase as a result of global warming. Sudden and slow-onset climatic changes will similarly grow in frequency and intensity. Sudden-onset climate impacts include extreme weather events, while slow-onset climatic impacts happen over a longer period and include droughts, sea-level rise and salinisation.17 Both extreme weather events and slow-onset changes are highly likely to negatively impact ecosystems, food production, water supply, infrastructure, human livelihood and human safety.18
These changes and impacts will not affect all parts of the world equally. The disproportionate spread of climate change impacts throughout the globe is widely recognised.19 The populations anticipated to face the worst of climatic impacts have been labelled the “climate vulnerable”.20 The IPCC defines vulnerability as: 21
13 IPCC, above n 1, at 5.
14 Burkett, above n 9, at 510.
15 Paris Agreement (opened for signature 22 April 2016, entered into force 4 November 2016), art (1)(a).
16 IPCC, above n 1, at 5.
17 Fanny Thornton “Of Harm, Culprits and Rectification: Obtaining Corrective Justice for Climate Change Displacement” (2021) 10 TEL 13 at 16.
18 Working Group II IPCC, above n 8, at 6.
19 Burkett, above n 9, at 513.
20 Burkett, above n 9, at 513.
21 Working Group II IPCC, above n 8, at 5.
The propensity or predisposition to be adversely affected. Vulnerability encompasses a variety of concepts and elements including sensitivity or susceptibility to harm and lack of capacity to cope and adapt.
Island states in the Pacific region are among the climate vulnerable. Succeeding discussion will expand on the multitude of factors that enhance the region’s vulnerability to climate change and its impacts.
1 Environmental vulnerability
While sea-level rise is a global problem, its distribution is not uniform, posing the greatest risk for low-lying island states in the Pacific.22 For example, the Solomon Islands have experienced three times the global average sea-level rise in the past 20 years.23 The IPCC has confidently stated that sea-level rise will significantly impact coastal areas and low-lying island states.24 A significant proportion of the population in the Pacific region reside close to the coast.25 Between 95 to 100 per cent of Tuvalu’s, Marshall Islands’ and Kiribati’s populations live below five meters above sea-level.26 Sea-level rise will damage or destroy infrastructure, salinisation will compromise freshwater supplies and coastal ecosystems may be lost altogether.27 Extreme weather events such as coastal flooding and storm surges will increase with sea-level rise and exacerbate these risks.28 Island communities in the Pacific face the loss of infrastructure, communities, services and even entire nation-states.29
Kiribati, a low-lying island in the Pacific, exemplifies these dangers. Agriculture productivity and infrastructure are under threat due to sea-level rise causing salt-water intrusion and coastal erosion.30 Coastal communities are struggling to protect their homes and assets. The coastal
22 Stephanie Perkiss and Lee Moerman “A Dispute in the Making: A Critical Examination of Displacement, Climate Change and the Pacific Islands” (2018) 31 AAAJ 166 at 169.
23 Albert and others, above n 7, at 3.
24 Working Group II IPCC, above n 8, at 17 and 24.
25 Tauisi Taupo, Harold Cuffe and Ilan Noy “Household Vulnerability on the Frontline of Climate Change: The Pacific Atoll Nation of Tuvalu” (2018) 20 Environ Econ Policy Stud 705 at 707.
26 Perkiss and Moerman, above n 22, at 169.
27 Perkiss and Moerman, above n 22, at 169; and Working Group II IPCC, above n 8, at 17.
28 Working Group II IPCC, above n 8, at 17.
29 Perkiss and Moerman, above n 22, at 167 and 169.
30 Lacey Allgood and Karen McNamara “Climate-Induced Migration: Exploring Local Perspectives in Kiribati”
(2017) 38 Singapore Journal of Tropical Geography 370 at 371.
ecosystem and fisheries that many rely on for subsistence are ceasing to exist.31 These changes are having extreme impacts on the livelihoods of coastal communities.32 Available land that is safe from the effects of sea-level rise is scarce given the narrow width of the island, and adaptation options are limited.33 Estimates depict that over half of Kiribati will be underwater by 2050.34
2 Socioeconomic vulnerability
Vulnerability is multifaceted. Populations are likely to be vulnerable to climatic changes due to social, economic, cultural, political and institutional factors, as well as geographic location.35 Heightened vulnerability is associated with low socioeconomic status and limited resources.
Developing countries face particular challenges given their limited ability to cope with and adapt to climatic changes.36 The IPCC has stated that “the countries with the fewest resources are likely to bear the greatest burden of climate change in terms of loss of life and relative effect on investment and economy.”37
This stands true for low-lying island states in the Pacific region. The Pacific Islands’ small and remote characteristics mean there is limited access to resources, human capital, employment, technology and infrastructure.38 While poverty levels are relatively low in the Pacific region, due to cultural and community traditions depicting help and support, hardship will increase as a result of climate change.39 The economic activity that many Pacific Island communities rely on, such as agriculture, fishing and tourism, risk being lost altogether due to climatic impacts.40 Climatic disasters and impacts in the Pacific have already contributed to a loss of capital.41 The small cumulative GDP of Pacific states will be significantly impacted, diminishing an already small pool of resources necessary for adaptation.42 Local communities have taken adaptation
31 Simon Albert and others “Keeping Food on the Table: Human Responses and Changing Coastal Fisheries in Solomon Islands” (2015) 10 PLoS One e0130800 at e0130800.
32 Albert and others, above n 31, at e0130800.
33 Allgood and McNamara, above n 30, at 371.
34 Allgood and McNamara, above n 30, at 371.
35 IPCC, above n 1, at 5.
36 Working Group II IPCC, above n 8, at 6.
37 Working Group II IPCC Climate Change 2001: Impacts, Adaptation and Vulnerability: Summary for Policy Makers (IPCC, Third Assessment Report, 2001) at 8.
38 Perkiss and Moerman, above n 22, at 176.
39 Taupo, Cuffe and Noy, above n 25, at 708.
40 Perkiss and Moerman, above n 22, at 176.
41 Taupo, Cuffe and Noy, above n 25, at 707.
42 Perkiss and Moerman, above n 22, at 176; Working Group II IPCC, above n 8, at 17.
measures, yet these will soon be inadequate, particularly if the likelihood of whole island inundation presents itself.43
For the outlined reasons, low-lying islands in the Pacific region will face the first and worst of climate-related dangers. Populations in the pacific region are climatically vulnerable. The enhanced exposure to climatic impacts and limited ability to adapt threatens the livelihood and safety of entire island nations. Given the limited coping options for such populations, relocation will become necessary. The following section will detail climate induced displacement both generally and in the Pacific region specifically.
B Climate Induced Displacement
The effects of climate change are rendering villages, cities and islands uninhabitable. It is now 60 per cent more likely a natural disaster will displace any one person than it was four decades ago.44 In 2009, of the 350 million displaced people, 25 million were considered “climate displaced people”.45 The number of climate displaced persons will increase dramatically as global warming continues, rendering it one of the “largest global human crises of our time”.46 Estimates depict that climate change will displace between 150 million to one billion people before 2050.47 Another estimate states that climate change will displace 10 per cent of the global population in the same period.48 The following discussion will unpack climate induced displacement.
1 Causes
Climate induced displacement, environmental migration, climate migration or climate refugee movement are all terms used to denote the movement of people as a result of climate change impacts. The relationship between climate change and people movement, however, is not always direct. Similar to climate vulnerability, climate induced displacement is multi-causal.
43 Albert and others, above n 7, at 2263.
44 Thornton, above n 17, at 16.
45 Perkiss and Moerman, above n 22, at 169–170.
46 Perkiss and Moerman, above n 22, at 170.
47 Jolly and Ahmad, above n 2, at 24.
48 Perkiss and Moerman, above n 22, at 170.
Displacement may occur due to a combination of factors relating to climatic events, socioeconomic vulnerability and lack of coping capacity.49
The unevenly distributed impacts of climate change and enhanced vulnerability of populations extend to climate induced displacement. As articulated, poor or developing populations are facing the brunt of climate-related impacts. These populations have limited ability to adapt to such impacts, despite the greater need to do so. For example, populations in developing states more commonly rely on climatically vulnerable ecosystems as sources of income.50 Destruction of these ecosystems will leave many unemployed and without income, limiting the chances of successful adaptation. Relocation may be the most realistic option. Alternatively, populations in developed states are unlikely to rely on climatically vulnerable ecosystems or are equipped with ample resources to cope with climatic changes. These populations can likely avoid relocation entirely. Climate induced displacement, therefore, will disproportionately affect poor and developing populations around the globe.51
2 Types
Climate change induced people movement takes three prominent forms. Firstly, people may be forced to move in response to climatic change that renders an area uninhabitable or unsafe. The Foresight report stated that “‘no migration’” will soon be an infeasible option “in the context of future environmental change”, particularly in the context of sudden-onset extreme weather events.52 Developing populations who cannot cope with climatic events and changes are more likely to have no choice but to relocate. Secondly, people may choose to move as a result of climatic changes deteriorating their living circumstances. Slow-onset climatic changes may have the effect of destroying agriculture and ecosystem services.53 Communities reliant on these sectors may choose to relocate as a result of loss of income. Sudden-onset climatic events will also leave people with the choice to stay and adapt to the changed environment or relocate.
Thirdly, climatic changes may lead to the need for people to move but for a multitude of reasons they are trapped.54 This may occur due to low socioeconomic status and lack of resources
49 Jolly and Ahmad, above n 2, at 25.
50 Jolly and Ahmad, above n 2, at 20; See also Maxine Burkett “Behind the Veil: Climate Migration, Regime Shift, and a New Theory of Justice” (2018) 53 Harv CRCL L Rev 445 at 448.
51 Burkett, above n 50, at 455.
52 At 16.
53 Foresight, above n 5, at 45.
54 Foresight, above n 5, at 13.
necessary for relocation. In some circumstances, “trapped” populations may flee an area despite the lack of appropriate resources. Either alternative is associated with increased vulnerability.
It is important to note the consequences of climate-related people movement exist whether a person was forced out of their home or chose to relocate. Thus, for the purposes of this paper, the distinction of forced or chosen relocation has minimal relevance.55 The fact that climate change is necessitating people movement is the crux of this global dilemma.56
Furthermore, climate induced displacement can be temporary, permanent, internal or external.
Movement resulting from sudden-onset climatic events is often temporary, whereas slow-onset environmental degradation will most commonly result in permanent relocation.57 External movement involves individuals crossing state borders, while internal movement depicts movement within an individual’s home state.58 Most climate induced displacement has been internal, for example, from rural or coastal areas into cities.59 Internal relocation, however, will not always be possible. If entire island states in the Pacific submerge, populations will have no choice but to cross international borders.60 While internal movement is a significant problem, it is a problem that currently lies within the jurisdiction of states.61 Therefore, the remainder of this paper focuses on external movement, which justifiably calls for an international response.
Regardless of the form climate change induced displacement takes, it will have significant consequences.
55 See David Hodgkinson and Lucy Young “In the Face of Looming Catastrophe: A Convention for Climate- Change-Displaced Persons” in Michael Gerrard and Gregory Wannier (eds) Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, New York, 2013) at 314; the authors state “population movements based on the conclusion that a region will no longer be habitable in the future also constitute “forced” migration.”
56 Thus, references to climate displacement includes ‘trapped’ populations.
57 Jolly and Ahmad, above n 2, at 26–27.
58 Frank Biermann and Ingrid Boas “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees” (2010) 10 Global Environmental Politics 60 at 66; and Chris Methmann and Angela Oels “From ‘Fearing’ to ‘Empowering’ Climate Refugees: Governing Climate-Induced Migration in the Name of Resilience” (2015) 46 Security Dialogue 51 at 57.
59 Methmann and Oels, above n 58, at 57; World Bank World Development Report 2010: Development and Climate Change (World Bank, 2010) at 109.
60 Benoit Mayer “The International Legal Challenges of Climate-Induced Migration: Proposal for an International Legal Framework” (2011) 22 Colo J Intl Envtl L & Poly 357 at 363.
61 See Mayer, above n 60, at 369; and United Nations Guiding Principles on Internal Displacement UN Doc E/CN.4/1998/53/Add.2 (11 February 1998).
3 Consequences
Climate induced displacement will have a range of consequences for both the displaced and regions that receive the displaced. While relocation may intend to retain livelihood, this will not always be the case, particularly for developing populations.
For many, relocation is an emergency response that forces movement without sufficient planning or resources.62 People may move suddenly in response to environmental dangers, ill- equipped to legitimately set up a new life. Given that the developing world is likely to make up most climate displaced persons, many will lack the resources necessary to move safely and advantageously. Relocation may be maladaptive due to exposure to new and exacerbated vulnerabilities.63 Housing and employment become major challenges for those who have relocated without adequate planning or assistance.64 Particularly in the case of external movement, language barriers and niche employment history will render many without sources of income.65 Researchers have followed climate migrants on their journeys, reporting that a significant majority ended up in overpopulated urban slums exposed to a range of health risks.66 Furthermore, as relocation due to climatic change is most commonly not desired, it can have a range of impacts on an individual’s sense of culture and identity.67 Climate displaced persons face leaving behind their traditions, culture and way of life when they leave their home country.68 In the case of whole island states submerging, many populations will also suffer a loss of statehood.69
Without regulation, the hosting of climate displaced persons is also likely to be disproportionately spread throughout the globe. Developing states will take on the bulk of migrants due to comparatively looser laws and regulations.70 The IPCC has stated that “climate
62 Working Group II IPCC, above n 8, at 767.
63 Methmann and Oels, above n 58, at 61.
64 Foresight, above n 5, at 67.
65 Katha Kartiki “Climate Change and Migration: A Case Study from Rural Bangladesh” (2011) 19 Gender and Development 23 at 30.
66 Kartiki, above n 65, at 34.
67 Working Group II IPCC, above n 8, at 771.
68 Allgood and McNamara, above n 30, at 381.
69 Robyn Eckersley “The Common but Differentiated Responsibilities of States to Assist and Receive ‘Climate Refugees’” (2015) 14 European Journal of Political Theory 481 at 482.
70 Fanny Thornton Climate Change and People on the Move: International Law and Justice (1st ed, Oxford University Press, United Kingdom, 2018) at 7.
change can indirectly increase risks of violent conflicts … by amplifying well-documented drivers of these conflicts such as poverty and economic shocks.”71 Unregulated large-scale displacement may lead to overpopulated areas that puts stress on regions, migrants and host citizens. Unemployment and competition for resources will increase if displacement is unplanned and unregulated, which may undermine social cohesion.72 A flux in unregulated climate displacement poses risks for both human and national security.73 With climate displaced persons seen as a threat to national security, response policies and action may increase their vulnerability in their new homes.74
It is likely, therefore, that the movement of climate displaced persons will be “the movement of people who are rushed, unwanted and unprepared, into unfamiliar and perhaps hostile new environments.”75
4 Displacement in the Pacific
As outlined, low-lying islands in the Pacific region are considered to be ‘climate vulnerable’
because of their exposed environments and limited ability to cope with severe impacts.
Populations from atoll states in the Pacific, such as Tuvalu and the Marshall Islands,are likely to represent the first significant wave of climate displaced persons.76 Given the risk of whole island states submerging, people movement in the Pacific region will soon be limited to external and permanent relocation.77
Safe movement from island states is likely to be challenging for many people in the Pacific, particularly the poor.78 Without the means to relocate offshore, poor populations may find themselves trapped in worsening environmental conditions.79 The Republic of Kiribati provides an example. Sea-level rise and salinisation of freshwater supplies are increasingly
71 Working Group II IPCC, above n 8, at 20.
72 Foresight, above n 5, at 110.
73 Mayer, above n 60, at 377; and Methmann and Oels, above n 58, at 56.
74 Working Group II IPCC, above n 8, at 20.
75 Burkett, above n 9, at 539.
76 Allgood and McNamara, above n 30, at 372.
77 Amy Louise Constable “Climate Change and Migration in the Pacific: Options for Tuvalu and the Marshall Islands” (2017) 17 Regional Environmental Change 1029 at 1029.
78 Foresight, above n 5, at 13.
79 Foresight, above n 5, at 13.
threatening the livelihoods and security of Kiribati communities.80 Internal migration is currently occurring, but this is presenting challenges for access to resources and employment.81 As most of Kiribati’s islands are less than three meters above sea-level, internal migration will soon be insufficient in response to continuing seal-level rise and environmental degradation.82 Despite the need to relocate externally, local community members in Kiribati have voiced reluctance. The low per capita income of Kiribati makes external relocation an expensive and demanding option.83 Housing, employment and adapting to a new way of life have been frequent concerns among community members.84 Furthermore, reluctance to leave their home state reflected fears of losing connections with their country, culture, traditions, sovereignty and traditional skills.85
External relocation for populations in the Pacific, therefore, will involve “hardship, trauma, and insecurity.”86 De Blum, Marshall Island Minister, summarised this, “displacement of people in our part of the world is terminal. You know, you lose your sovereignty, you lose your language, you lose your tradition, you lose you.”87
C The Injustice
The human activity that has contributed to global warming is spread disproportionately among countries. The impacts of global warming on human life are also disproportionately spread, albeit not in correspondence with the former. These facts present major political, legal, social and moral questions that remain largely unanswered. Climate justice aims to address these issues. The Centre for Climate Justice has sufficiently summarised climate justice as follows:88
Climate Justice recognises humanity’s responsibility for the impacts of greenhouse gas emissions on the poorest and most vulnerable people in society by critically
80 Allgood and McNamara, above n 30, at 375.
81 At 371.
82 At 371.
83 Perkiss and Moerman, above n 22, at 176.
84 Allgood and McNamara, above n 30, at 379–380.
85 At 379.
86 Perkiss and Moerman, above n 22, at 180.
87 Perkiss and Moerman, above n 22, at 177.
88 Glasgow Caledonian University “Centre for Climate Justice” (Accessed 21 September 2021) Centre for Climate Justice < https://www.gcu.ac.uk/climatejustice/>.
addressing inequality and promoting transformative approaches to address the root causes of climate change.
In short, “the fundamental ethical issues in climate change concern the distribution of the burdens and benefits” relating to it.89 For the developed world, climate change problems centre primarily around the costs of mitigating emissions.90 Historically, developed countries have benefitted from “unrestrained exploitation of the environment”.91 Large, affluent economies have been reliant on burning fossil fuels for energy, thus driving economic development.92 By way of example, the ‘richest’ 50 per cent of the world is responsible for 86 per cent of global greenhouse gas contributions.93 Greenhouse gas emissions have accrued significant lifestyle benefits for the developed world.94 Eric Neumayer stated:95
There can be no doubt that the development of the “Northern” countries was eased, if not made feasible in the first place, by having had the possibility of burning large amounts of fossil fuel with the consequence of an accumulation of carbon dioxide in the atmosphere …
These historical “luxury”96 emissions have not gone without consequences. However, it is not the high-emitting developed nations who are facing the music. The climate vulnerable, characteristically poor or developing countries, are set to disproportionately face majority of climate change impacts while simultaneously lacking the resources to cope and adapt. The climate vulnerable have minuscule levels of past and present emissions compared to their developed high-emitting counterparts.97 Nevertheless, the developing world will suffer roughly 80 per cent of the damage caused by climate change.98 In other words, “the poorest are paying and will continue to pay for the emissions-intensive behaviour of the rich.”99 While not all
89 Grasso, above n 12, at 3.
90 Grasso, above n 12, at 3.
91 Babatunde, above n 3, at 265.
92 Henry Shue “Subsistence Emissions and Luxury Emissions” (1993) 15 Law & Policy 39 at 60.
93 Babatunde, above n 3, at 266.
94 Thornton, above n 70, at 130.
95 Eric Neumayer “In Defence of Historical Accountability for Greenhouse Gas Emissions” (2000) 33 Ecological Economics 185 at 189.
96 See generally Shue, above n 92.
97 Burkett, above n 9, at 514.
98 Naomi Klein “Climate Rage: The only way to Stop Global Warming is for Rich Nations to Pay for the Damage they’ve done – or face the Consequences” Rolling Stone (online ed, United States, 12 November 2009).
99 Burkett, above n 9, at 514.
developing countries are low-emitters, China and India having recently spiked in emissions,100 this is certainly true for the Pacific Islands. The World Bank has stated that Pacific Island states contribute only one metric ton per capita of greenhouse gas emissions, one-ninth of the per capita emissions of developed countries.101
Climate change is a problem of human security and well-being for the developing world, with minimal focus on mitigation.102 The burden of adapting to climate change and coping with impacts presents the most significant challenge for poorer populations. While adaptation is the most pressing issue, developing countries have significantly weaker adaptive capacity than developed countries.103 Adaptative capacity is “the ability of a system to adjust to climate change (including climate variability and extremes) to moderate potential damages, to take advantage of opportunities, or to cope with consequences.”104 Adaptive capacity is greater when a country has ample resources, easy access to technology and a stable economy.105 This is not the case for developing nations, after all “we live in a world with an abundance of wealth and natural resources and advances in technology, albeit unequally distributed.”106 Thus, developing nations suffering the brunt of environmental impacts are beginning their fight against climate change severely disadvantaged.
Climate injustice is strikingly present in the context of climate induced displacement. The injustice plainly presents itself in the fact that the emission activity of some states over time has led to the displacement of populations in other states. The consequences of emissions, such as displacement, disproportionately affects populations that are less well-off and have contributed comparatively little to global emissions. A mere one per cent of global green-house gas emissions are attributable to small island developing states and less than a tenth of one per cent are attributable to the Pacific Islands.107 The Pacific Islands are also suffering some of the gravest impacts of climate change and will make up the first wave of climate displaced persons.
100 Jonathan Pickering and Christian Barry “On the Concept of Climate Debt: Its Moral and Political Value”
(2012) 15 Critical Review of International Social and Political Philosophy667 at 671 and 676–677.
101 DataBank “Data: Climate Change” (Accessed 21 September 2021) The World Bank
<http://data.worldbank.org/topic/climate- change>.
102 Grasso, above n 12, at 4.
103 Grasso, above n 12, at 22.
104 Grasso, above n 12, at 22; see also Working Group II IPCC, above n 8, at 214.
105 Grasso, above n 12, at 22.
106 Perkiss and Moerman, above n 22, at 167.
107 Perkiss and Moerman, above n 22, at 176.
The Executive Director of the Pacific Islands Association of Non-Governmental Organisations captures the injustice in his statement:108
Many of the situations we find ourselves in, here in the Pacific, are not caused by us.
We continue to ask, ‘Where is the justice?’ Those of us who are least responsible, continue to bear the brunt … We hope that there will be an openness and an acceptance that climate-induced migration is one that the world community has to be responsible for.
The rising need for external relocation and inherent injustice of the problem begs analysis of current international law that might offer assistance. As the following chapter will demonstrate, such assistance is scarce and demonstrably insufficient.
III The Law
In 2008, the United Nations High Commissioner for Refugees stated, “although there is a growing awareness of the perils of climate change, its likely impact on human displacement and mobility has received too little attention.”109 Over a decade later, the displaced are still struggling to find a place in international law. Despite attempts to find sanctuary under international refugee law, human rights law and other international instruments, those displaced by climate change currently fall through a legal gap. The following chapter will detail the inadequacies of existing legal avenues, foreshadowing the need for a new international legal framework that addresses climate induced displacement.
A Refugee Law
The term “climate refugees” is prevalent in literature, despite no legal recognition of the concept.110 The label conceptualises those displaced by climate change as refugees who appropriately fall under the protection of international refugee law. However, climate-
108 Thornton, above n 17, at 14.
109 Office of the United Nations High Commissioner for Refugees Climate Change, Natural Disasters and Human Displacement: A UNHRC Perspective (UNHCR The UN Refugee Agency, Climate Change Policy Paper, 23 October 2008) at 1.
110 Methmann and Oels, above n 58, at 56.
displaced people lack legitimate protection under the 1951 Geneva Convention on the Status of Refugees.
The convention defines refugee as a person who is outside the country of their nationality and is unable or unwilling to return to their home country because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.111 The definition presents significant challenges for climate displaced persons. Firstly, persecution has been defined as the “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”112 The violation of such rights must present an “imminent risk”.113 As articulated, climate displacement can take different forms and will not always be in response to an imminent risk but gradual environmental degradation. Furthermore, the state must be responsible for the harm or persecution.114 This presents an obvious barrier for those displaced by environmental degradation as a result of climate change. Commentators have recognised that ‘persecution’ may be possible to prove if the state has intentionally failed to protect its people from the harmful effects of climate change.115 However, the final and perhaps ultimate hurdle requires the persecution be because of race, religion, nationality, social group or political opinion. Climatic disasters and impacts
“do not discriminate” on the basis of one of the convention’s five recognised grounds.116 Thus, meeting the definition of a refugee will prove extremely difficult for the majority of climate displaced persons.
The United Nations Human Rights Committee (UNHRC) recently considered Ioane Teitiota’s refugee application in New Zealand. Teitiota’s unsuccessful battle illustrates the difficulty in reconciling climate displacement with refugee law. Teitiota was seeking to escape the rising seas and climatic impacts occurring in his home state, Kiribati. Sea-level rise had resulted in
111 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954), art 1.
112 Refugee Appeal No. 74665/03 (7 July 2004) at [41]; and AF (Kiribati) [2013] NZIPT 800413 at [53].
113 United Nations Human Rights Committee [UNHRC] Views Adopted by the Committee Under Article 5(4) of the Optional Protocol, Concerning Communication No.2728/2016 (UNHRC, CCPR/C/127/D/2728/2016, 23 September 2020) at [4.5].
114 Thea Phillip “Climate Change Displacement and Migration: An Analysis of the Current International Legal Regime’s Deficiency, Proposed Solutions and a way Forward for Australia” (2018) 19 Melb J Intl L 639 at 645–
646; and UNHRC, above n 113, at [8.4].
115 Mayer, above n 60, at 383; and Matthew Scott Climate Change, Disasters, and the Refugee Convention (Cambridge University Press, United Kingdom, 2020) at 7. An example of this is if a state has intentionally prevented internal migration or humanitarian aid.
116 Scott, above n 115, at 4.
contaminated freshwater supplies, environmental degradation and scarcity of safe land which led to violent disputes.117 Teitiota claimed that rejecting his refugee application and sending him back to Kiribati violated his right to life. The UNHRC, however, found that Teitiota’s right to life was not at imminent risk, a requirement for persecution.118 Furthermore, the claimed harm was not caused by the state of Kiribati119 and the environmental degradation was experienced by Kiribati’s population indiscriminately, unrelated to the conventions’
recognised grounds.120 Thus, refugee law offered no protection for Teitiota. This conclusion was reached despite the climatic impacts in Kiribati being so extreme that the Kiribati Government plans to evacuate the entire population.121
While some academics have contended that the inapplicability of refugee law is “a lack of will rather than of law”,122 it is contentious whether refugee law is the most appropriate regime for climate displacement. Climate displaced persons have repudiated the “undignified” label of
“climate refugees”, holding that it fails to reflect the true nature of climate displacement.123 Refugee law protects those escaping harm or persecution caused by their home state. Climate displaced persons are reluctantly leaving their home state due to harm caused, most commonly, by states other than their own. The label fails to capture the loss of culture, traditions and sense of identity that many will experience and thus ignores the inherent injustice of displacement.124 The majority of academics share the view that “no matter the complexity of the legal gymnastics used to equate climate displacees with formal refugees, the label is not applicable.”125
117 UNHRC, above n 113, at [3].
118 At [8.4].
119 At [9.12].
120 AF (Kiribati), above n 112, at [75].
121 Jolly and Ahmad, above n 2, at 42.
122 Andrew Baldwin and Elisa Fornalé “Adaptive Migration: Pluralising the Debate on Climate Change and Migration” (2017) 183 The Geographical Journal 322 at 324.
123 Eckersley, above n 69, at 482.
124 Allgood and McNamara, above n 30, at 381.
125 Andrea Simonelli “Climate Displacement and the Legal Gymnastics of Justice: Is it all Political?” (2011) 35 Ethics & International Affairs 303 at 303.
B The International Climate Change Regime
1 Migration as adaptation
Within the international climate change regime, people movement due to climate change is commonly considered a form of adaptation.126 The term “climate migrants” has resulted. Under this conceptualisation, migration is portrayed as an adaptive choice to improve livelihood.127 Despite classifying migration as adaptation, no international instrument provides the required assistance to bring this conceptualisation to life.
Relocation and displacement were notably mentioned in the 2010 Cancun Adaptation Framework, albeit only in one sentence.128 Following the Cancun agreements, the United Nations High Commissioner for Refugees unsuccessfully attempted to create a global guiding framework for displacement.129 In the same year, the 2011 Foresight report proposed the potential of migration as “transformational adaptation strategy” that empowers migrants to increase their “resilience”.130 While the report encouraged new policy to ensure migration occurs in managed and beneficial ways,131 this suggestion has not manifested in international law. Most recently and adhering to the trend, the Paris Agreement failed to establish any legitimate guidance, merely acknowledging the rights of migrants in the preamble.132
The lack of any international mechanism that puts “migration as adaptation” into practice presents a real obstacle for populations in the Pacific Islands. There are existing migration schemes in place in Australia and New Zealand. These schemes, however, will become increasingly inadequate in response to the large level of displacement set to occur133 and “do not bring an appropriate answer to the necessity that all climate migrants be given a new place
126 Jolly and Ahmad, above n 2, at 43.
127 Methmann and Oels, above n 58, at 60.
128 UNFCCC COP 16 The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long- term Cooperative Action under the Convention UN Doc FCCC/CP/2010/7/Add.1 (15 March 2011), art 14(f).
129 Phillip, above n 114, at 642.
130 At 175.
131 At 173.
132 Preamble.
133 Michele Klein Solomon and Koko Warner “Protection of Persons Displaced as a Result of Climate Change:
Existing Tools and Emerging Frameworks” in Michael Gerrard and Gregory Wannier (eds) Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, New York, 2013) at 290.
to live in dignity.”134 For example, the New Zealand government has created the Pacific Access Category to allow 75 individuals and their immediate families from Tuvalu to migrate per year.135 The scheme requires proof of language ability, employment plans and the fulfilment of income requirements; all problems in the case of forced environmental displacement.136 Australia and New Zealand both have seasonal worker programs set up for Kiribati residents.137 Seasonal relocation, however, is not a viable option in light of Kiribati’s expected inundation.
Despite the obvious inadequacies of these schemes, the New Zealand government has asserted it “does not have an explicit policy to accept people from Pacific Island countries due to climate change”.138
Without international support, migration is unlikely to be adaptive. As discussed in chapter II, relocation due to climatic impacts commonly occurs in unplanned, unmanaged ways. Migrants typically lack sufficient resources and find themselves in situations of equal or exacerbated vulnerability. Without international assistance, migration will remain a highly stressful, disruptive and traumatic experience for many.
Furthermore, migration as adaptation silences callings for climate justice by shrinking both rights and responsibilities.139 Migrants bear the burden of relocation, shifting responsibility away from institutional agents.140 Migration as adaptation portrays relocation as a proactive and smart choice, which undoubtedly “masks the inequalities and disproportionate burden”
experienced by the climate vulnerable.141 Perceiving climate induced displacement through a an adaptive lens fails to account for the losses and psychological stress migrants will suffer.142 Ultimately, this conceptualisation “is an oversimplification and a restrictive approach” to climate displacement.143 Thus, analysis of alternative legal avenues for addressing the problem of displacement is necessary.
134Mayer, above n 60, at 386.
135 Mayer, above n 60, at 386.
136 Constable, above n 77, at 1029.
137 Klepp and Herbeck, above n 7, at 67.
138 Klepp and Herbeck, above n 7, at 68.
139 Giovanni Bettini, Sarah Nash and Giovanna Gioli “One Step Forward, Two Steps Back? The Fading Contours of (In)justice in Competing Discourses on Climate Migration” (2017) 183 The Geographical Journal 348 at 349.
140 Bettini, Nash and Gioli, above n 139, at 349.
141 Jolly and Ahmad, above n 2, at 69.
142 Working Group II IPCC, above n 8, at 771.
143 Jolly and Ahmad, above n 2, at 97.
2 Loss and damage
“Loss and damage” within the international climate change regime recently emerged as a potential avenue for addressing climate displacement. Displacement may be viewed as loss or damage resulting from climate change impacts, and therefore requires the international community’s support to address it. Despite theoretical potential, actual support and action under this notion are yet to eventuate.
The international legal system has “struggled to define the boundaries of responsibility for harmful actions”.144 Despite the continued calls of small island states to address climate-related harms,145 developed nations have historically avoided the topic of climate change-related loss and damage.146 However, in 2007, the Bail Action Plan introduced “loss and damage” to the international climate change arena.147
In 2010, “loss and damage” emerged in international negotiations regarding the Cancun Agreement.148 The Conference of the Parties (COP) in Durban, 2011, and in Doha, 2012, referenced establishing an international mechanism to address loss and damage associated with the impacts of climate change.149 In 2013, the parties to the United Nations Framework Convention on Climate Change (UNFCCC) agreed to establish the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts. The key functions of the mechanism are to enhance understanding of risk management, strengthen dialogue and coherence between stakeholders and enhance action and support to address loss and damage resulting from climate change.150
While not explicitly defined, loss and damage include more than that which can be reduced through adaptation, namely “unavoidable” damage.151 Theoretically, the mechanism will
144 Working Group III IPCC Climate Change 2014: Mitigation of Climate Change: Social, Economic and Ethical Concepts and Methods (IPCC, Fifth Assessment Report, 2014) at 218.
145 Moleen Monita Nand and Douglas K Bardsley “Climate Change Loss and Damage Policy Implications for Pacific Island Countries” (2020) 25 Local Environment 725 at 730.
146 Daniel Bodansky “The Paris Climate Change Agreement: A New Hope?” (2016) 110 AJIL 288 at 309.
147 UNFCCC COP 13 The Bali Action Plan: Outcome of the Work of the Ad Hoc Working Group on Longer-term Cooperative Action under the Convention UN Doc FCCC/CP/2007/6/Add.1 (14 March 2008), art 1(c)(iii).
148 Thornton, above n 70, at 111.
149 Thornton, above n 70, at 112.
150 UNFCCC “Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM)” (2021) <www.unfccc.int>; Adelman, above n 11, at 46.
151 Eckersley, above n 69, at 482.
provide support to vulnerable, developing countries in response to the unavoidable impacts of climate change, such as displacement.152 The operationalisation of the mechanism is still a work in progress. COP21 in Paris, 2015, agreed the executive committee of the Warsaw Mechanism would set up a task force to “develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.”153 The task force established at COP21 is presently in phase two, which involves the identification of best practice to minimise and address displacement.154
It is unclear exactly how loss and damage arising from climate displacement will be addressed, particularly given that the Paris agreement has been carefully drafted to avoid liability and financial compensation.155 Further, developed countries have been reluctant to recognise loss and damage in any practical sense out of fear of subsequent litigation and liability.156 The mechanism currently provides no support for the displaced, and whether it will in the future remains uncertain. Inaction and uncertainty will not suffice for climate induced displacement.
Following the UNFCCC’s recognition of climate-related loss and damage, smaller state-led responses to the problem of displacement have emerged, such as the Nansen Initiative.157 However, climate induced displacement, a global phenomenon, requires a global response.
While state-led initiatives are a step in the right direction, their voluntary nature is unlikely to attract enough key players and effective implementation on the global scale remains a significant challenge.158 Despite the potential for displacement to be addressed through loss and damage, the current status of the Warsaw Mechanism maintains the legal gap in which climate displaced persons reside.159
152 Eckersley, above n 69, at 482.
153 Thornton, above n 70, at 113.
154 Thornton, above n 17, at 30–31.
155 Article 8; see also Thornton, above n 70, at 113.
156 Nand and Bardsley, above n 145, at 731.
157 Phillip, above n 114, at 643.
158 Albert Kraler, Caitlin Katsiaficas and Martin Wagner Climate Change and Migration: Legal and Policy Challenges and Responses to Environmentally Induced Migration (European Union, PE 655.591, 2020) at 15.
159 Phillip, above n 114, at 643.
C International Human Rights Law
The connection between climate change and human rights has recently become prominent in academic and policy discourse.160 It is plausible that the injustice of climate change prompts human rights law to provide “the platform under international law in filling up the existing protection gaps to promote climate justice.”161 Human rights discourse encapsulates states’
responsibility to preserve and protect the fundamental rights of all people, including the displaced.162 However, analysis of international human rights law will demonstrate the flaws in applying it to climate displacement.
Violations of fundamental human rights emerge from severe environmental degradation.163 The argument for a human rights-based approach is grounded in the fact that regions are reduced to uninhabitability, threatening human rights such as the right to life, food, water and shelter.164 Furthermore, the disproportionate effect displacement will have on poor and vulnerable populations means that relocation may threaten other internationally recognised human rights, such as the rights to cultural heritage, livelihood, clothing, housing and self- determination.165
International instruments and bodies have acknowledged climate change’s threat to human rights. The UNHRC has stated that the right to life “cannot be construed in a restrictive fashion”, 166 and that states have human rights obligations to protect the rights of displaced persons.167 The Paris Agreement acknowledges that states should consider and promote obligations regarding the rights of migrants and people in vulnerable situations.168 However, vulnerable populations were disappointed with Paris given it failed to stipulate any mechanism that would actually protect their rights.169 Despite acknowledging the connection between
160 Jolly and Ahmad, above n 2, at 67.
161 Jolly and Ahmad, above n 2, at 68.
162 At 64.
163 Jolly and Ahmad, above n 2, at 69–70.
164 At 70.
165 At 70; International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976), arts 1, 3 and 11(1).
166 Jolly and Ahmad, above n 2, at 70; UNHRC, above n 113, at [9.4].
167 UNHRC, above n 113, at [9.4].
168 Preamble.
169 Jolly and Ahmad, above n 2, at 96.
